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HomeMy WebLinkAbout1990-0033.Michael.91-10-10 ~l'" ;\ ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREIT WEST, SUfTE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONEITÈLÉPHONE' (41$) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2JOO, TORONTO (ONTARfOI. M5G lZ8 FACSIMJlEITÉLÉCOPfE,' (416¡ 326-/396 33/90 ~ IN THB MATTER OF AN ARBITRATION UDder THE CROWN EMPLOYEES COLLECTIVB BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Michael) Grievor - and - . The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE: B. Fisher Vice-Chairperson H. O'Regan Member R. Scott Member FOR THE I. Roland GRIEVOR Counsel Gowling, strathy & Henderson Barristers & Solicitors FOR THE c. Peterson EMPLOYER counsel Winkler, Filion & Wakely Barristers & solicitors HEARING December 28, 1990 May 16, 1991 , j 1 This is a competition grievance In which the Grlevor is alleging that he should have been granted an interview. The incumbent, Ms. Brlnnlng, was notified of the hearing but did not attend. The posting, with a closing date of September 29, 1989, was for the position of Print Procurement Officer. The posting is attached as an exhibit to this decision. Mr. John Holland, Manager of Purchasing and Stores, was responsible for the pre-selection process and therefore decided who was to be Interviewed. Eighteen people 1n all applied lor the position. Anyone who did not have related experience was Immediately eliminated from the competition. The Grlevor passed this screening along with II other applicants. Mr. Holland determined that the class of candidates was still too large so he devised a criteria for determining who of the 12 remaining people should be granted an interview. In deciding who would make this second cut, Mr. Holland developed five criteria: 1. Print Procurement Experience This involves a detailed knowledge of papers, Inks, production processes, compatibility of ink with paper, production capabifities of supplies and the like. This aspect of the job is quite technical and specific. 2. Purchasing Criteria This involves the specific rules and regulations regarding the acquisition of goods and services as set down by the Management Board of Cabinet, as well as knowledge of the Sales of Goods Act, and other related statutes. 3. Formal Purchasing Education This relates to courses sponsored by organizations like the Purchasing Managers Association of Canada which leads to a professional designation. ~ ., ) , ~ , 2 4. Print Industry Experience This refers to having on the Job experience In the print industry outside the Ontario Government. 5. Years of Industry Experience This criteria would be useful In close cases only, where all other factors are more or less equal. All of the factors, other than years of Print Industry Experience, were generally rated with a yes or no. The four people who obtained Interviews obtained the following scores. . Print Formal Print Procurement Purchasing Purchasing Industry Experience Criteria Education Experience Vears - Ms.Brinning Ves (6mths). Ves Yes No 1/2 .. Purchasing '" Mr.McDonard Yes (1) Yes (1) No Yes 7 Printing Yvonne Ves (1 yr.) Yes Yes No 1/2 Sadler Purchasing Robert Kerr claimed but Yes Yes No 15 I not stated Purchasing . The Grievor only obtained -Yes" to "Print Industry Experience- where it was acknowledged he had 3 years experience. Mr. Holland testified that the only reference in the Grievor's application to Print Procurement Experience or Purchasing Experience was a -fleeting reference- to some such experience outside of the Government. The reference In fact is from a previous employer of the Grlevor's located In Pontypool, Ontario. The reference letter stated that the Grievor had worked for 4 years at the Company and In the course of his employment had done, among other things, purchasing. The author 01 the letter indicated in the last paragraph that he would be pleased to discuss the Grievor's work history. The Grlevor's application also makes references to the fact I I I r . - . ; 3 that in the past he has ·analyzed customer requirements and produced cost analysis, calculated and evaluated costs to bid on appropriate contracts for printing services, produced advice and guidance to aU customers by telephone and in person, analyzed and arranged schedules to adhere to and meet customers deadlines, verify for accuracy all shipments of print materials, and liaison with clients to resolve any discrepancies.- In cross-examination Mr. Holland admitted that most of these functions are also part of the lob duties of a Print Procurement Officer. The employer also presented evidence on Ms. Brlnning's application. Although she did not have any printing industry experience, she had been actually performing the Print Procurement office position as a Career Development Assignment for 3 months prior to the competition (not 6 as Mr. Holland listed on his chart). Moreover, Ms. Brinning was enrolled at the time In a course which would lead to the designation of a Certified Professional Purchaser. Ms. Brinnlng therefore received a ·Ves" for each category except Print Industry Experience. No evidence whatsoever was lead with respect to the qualifications of the other 3 people who were interviewed, other than the results of the screening as set out above. In particular, no explanation was given why a question mark was put beside Mr. McDonald's -Ves· on the categorIes of Print Procurement Experience I or Purchasing Criteria. I The Union presented no evidence. I I 80th parties presented the case as It it was a contest between the Grlevor and the incumbent, In which the Grievor had to show that he was as good as the Incumbent in order to obtain an Interview. Frankly, the ! Grievor set his sights too highs for In a denial of Interview grievance, he only has to knock out the lowest i ranking person who was interviewed to win. In other words as long as the Grlevor can show he was better I than, or at least not worse than, any of the people who were Interviewed, he has proven his entitlement to I be interviewed. In an failure to grant an interview grievance, the best the Grievor could do is to obtain a I rerun, he almost certainly would not be awarded the job outright. The employer has the right to determine I the number of people to be Interviewed, but If the Grievor shows that he was better than or equal to the I I I ·- .. . , , '" , ~ ...} :..\ . " (; ~ 4 lowest ranking person who was Interviewed, then the employer cannot exclude him from the Interview process. The real reason that the Grlevor was excluded from the interview process was because In Mr. Holland's assessment the Grlevor did not have any Print Procurement Experience, Purchasing Experience or Formai Purchasing Education. In fact however It was clearly stated In the Grlevor's reference letter from his previous employer that he performed ·purchaslng· as one of his job functions. Mr. Holland gave absolutely no credit for this however, In part one suspects that he felt that the former employer was a smatl outfit and therefore the purchasing function could not possibly be comparable. However he made no attempt to find out the size or scope of the organization, and therefore this particular judgment call Is open to question. It Is not sufficient to say that the Grievor did not have the minimum qualification for the job thus he need not be interviewed as no one, not even the Incumbent, fulfilled all the screening criteria. The Board feels that on the limited evidence presented before us Ihalthe Grlevor had shown on his application form that he had sufficient purchasing experience and knowledge and that he should have been granted an Interview, especially In light of the fact that none of the persons Interviewed fulfilled all of the screening requirements. This still leaves open the question of remedy. In the usual case a rerun Is ordered but in this case there are some very special circumstances. 1. The Grievor has less seniority than the incumbent thus he would have to convince a selection committee (and possibly this Board) that he was significantly superior to the incumbent. Given the incumbents background, this would be an undaunting task. 2. If we were to order a rerun we would order that any experience' gained by the Incumbent after she won the competition be excluded from consideration. However the Incumbent was performing the lob on a Career Development Assignment for 3 months prior to the competition, and this experience and knowledge cannot be Ignored. How then could any rational selection process be devised which would allow the first 3 months of experience but not the most recent 2 years? We feel that this would be f ~. .. ; 5 a near Impossible task which would undoubtedly lead to either a sham rerun or a selection process based on criteria unrelated to the lob Itself. Neither of these are desirable results. In light ot these considerations, the chances of the grievor being successful in a rerun are almost nil, and we therefore decline to order a rerun. However In the circumstances It Is appropriate to simply declare that the collective agreement was violated In that the Grievor should have been granted an interview. Dated: at Toronto,.Ontario, this 10th day of October, 1991. ~ U e",a--,- H. O'REGAN, MEMBER .' I r. I ) : R. SeóTTt MEMBER I